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Off-list Lower History

Introduction

As most are aware, certain AR/AK firearms thought previously to have been banned are legal to possess. Why did this happen, and how? In order to understand this, you must have some knowledge of the various laws that regulate so-called 'assault weapons' in California.

Three categories are often mentioned when discussing banned assault weapons. These categories relate the firearm to the law that regulated it. They are known as Category 1, Category 2, and Category 3. [ 1]

Firearms regulated by the Roberti-Roos Assault Weapons Control Act of 1989 are Category 1 assault weapons. Kasler v. Lockyer AR/AK 'series' weapons are Category 2. Finally, SB23 'feature' weapons are Category 3. Owners of firearms affected by these laws and decisions were allowed to register them.

Of these, Category 2 are the most important to the current situation. Prior to June 28, 2001, any firearm considered part of the AR-15 or AK47 'series' was regulated, regardless of the manufacturer and model name. If it looked like an AR-15 or AK47, it was a banned assault weapon. The decision of the CA Supreme Court in Harrott v. County of Kings was that assault weapons had to be listed specifically by make and model in a list promulgated by the Attorney General and published in the California Code of Regulations. [ 2]

Interestingly, the 'series' language was only valid from 8/16/2000 to the Harrott decision on 6/28/2001.

After the 'series' language was struck down, people did not immediately start buying AR and AK type rifles and receivers. To my knowledge, the Department of Justice did not officially acknowledge Harrott in writing until August 4, 2005. [ 3]

Before then, the only two real options in California were the Vulcan Arms CA legal lower with pinned/glued magazine, and the FAB-10 lower with a sealed magazine well. These manufacturers were under the impression that these modifications were enough to keep their product from falling under the 'series' definition. [ 4a, 4b]

Events

The following is an account of what has happened from my perspective. A lot is missing due to the fact that I am not omnipresent, but if you want something added or removed, let me know. Also keep in mind that none of this is legal advice. If legal advice is what you are looking for, you should consult an attorney (preferably one that specializes in firearms law.)

August 2005

In August, user 'blackrazor' received a response from the Department of Justice to a letter he sent regarding Harrott and the legality of a DSA 'ZM4' receiver. As far as I know, he did not post this publicly right away. [ 3]

This letter seems to have been the first official acknowledgment from the Department of Justice that Harrott did allow for stripped lower receivers (and fully-built 12276.1 compliant rifles) not on the list to be imported in to the state. Note that up until this time it appears that the DoJ only allowed receivers with the magazine not 'readily detachable' to be sold.

November 2005

It was during November that calguns member artherd (Ben Cannon) posted his letter regarding the JP 'CTR-02'. [ 5]

Armed with this letter, he tried several FFLs in the area, trying to get them to transfer the rifle. Eventually, he got one to do so. Since this rifle was only available complete, the magazine was fixed in place out of state. The magazine was affixed in a way that it would require a tool to remove, complying with the regulations present in the California Code of Regulations.

This letter, combined with the picture of Ben holding the rifle, fueled debate and speculation on calguns. Some of this debate was as to whether or not this was entirely legal (the letter included the now infamous “58 District Attorneys” reference). Even though this letter specifically mentioned the CTR-02 rifle, it was broad enough to cover any non-listed lower receiver. In a perfect world, this would have been enough to convince an FFL to transfer such a receiver (especially if they read and understood the applicable laws). However, this was not the case. Unaware of the Harrott decision (and often of the fact that the courts can and do interpret laws), most CA FFLs were not too eager to participate in transfers that they perceived as risky. Most manufacturers and out of state vendors were also not too eager to help.

At this time, myself and many others began to search for FFLs that would be willing to transfer OLLs.

In mid-to-late November, many on calguns began to send letters to the DoJ inquiring about the legality of the specific lower(s) that they wanted, hoping that they could use the responses to convince wary FFLs to do the transfer. This seemed to have had little effect, because any FFL willing to do a transfer at the time would have only needed to see the response to Ben's letter.

The large volume of letters being sent may have started a mild panic in the Department of Justice Firearms Division. Most, if not all, of these letters were sent to Deputy Attorney General Alison Merrilees.

My letter was sent in late November, but it proved to be unnecessary.

It was some time in November that Wes ( tenpercentfirearms) found out about this. At Bill's (bwiese) urging, he researched the topic. Soon after, he decided to sell lowers at the San Jose gun show! Needless to say, a lot of people were excited, because he was the first FFL to really sell these (we did not know about blackrazor's earlier letter and subsequent purchases). At the very least, he was the first FFLs to publicly transfer these.

December 2005

At this time, some were hopeful that we would be able to register these as assault weapons and later configure them the way they are intended to be. However, most of the people that were involved early on seemed to be happy just to have lowers better (and cheaper) than the FAB-10 or Vulcan. If they did decide to list, they couldn't possibly list everything at once, and it would start a cycle of purchasing, banning, and registration. We were always careful not to call these 'AR-15 receivers'. They were (and are) '.223 self loading rifle receivers.' I prefer to call them 'AR-15 style' receivers.

The big event in December was definitely the San Jose gun show. Wes from the newly opened gun store ' Ten Percent Firearms' drove all the way to San Jose from Taft, and was at the show for 2-3 days. He took some pre-orders before the show, and was selling Stag Arms, Sun Devil (billet), Fulton Armory, and possibly DSA receivers. I don't remember exactly what was sold, but his prices were excellent and they were selling fast. He even had to move his table to a secluded corner of the building because the line was blocking the view of other tables!

During the show, an agent from the Department of Justice (Ignatius Chinn) showed up and answered some questions. He claimed that they were in the process of updating the AW list, and they should be done in about two weeks. At the time, this news was shocking. We figured that they might list some day, but that it would probably be several months if not longer.

This announcement caused a lot of excitement, and it finally seemed like things were going our way.

Unfortunately, this feeling was short-lived for many of us. One after the other, Wes' suppliers backed out of their deals. He was forced to cancel orders because he could not deliver the product. He eventually did get around 100 Stag Arms receivers in, and the earliest orders were fulfilled (those that paid in full before the show). Also around this time, his new store was audited by the Department of Justice, and several Superior Arms lowers with the “auto” markings engraved on them (these were NOT full-auto receivers!) were seized. All of this stress was taking its toll on him. Having made it through the audit, but being drained physically, Wes decided to cut his losses and stop trying to sell lowers (for now). He continued to help people find receivers even after he stopped selling them himself.

The reason why manufacturers and suppliers were backing out was that the DoJ was calling and intimidating out of state manufacturers, suppliers, and dealers. They were giving ominous warnings (over the phone, rarely in writing) about California's '58 district attorneys', and some were allegedly told that these were illegal. It is not clear whether it was agents, desk clerks, actual attorneys, or a combination of them that made these calls. Whether or not the DoJ lied to the manufacturers and vendors, their strategy worked. Soon it seemed that nobody wanted to deal with us. Some were convinced that we were all going to jail.

This is the letter from Fulton Armory explaining why they canceled their order from Ten Percent Firearms (and why they requested that the lowers already shipped be sent back to them):

 Hi XXX,

 We [Fulton Armory] called UPS today and requested that they return back to us the
 shipment of 100 receivers we sent out last week to you.

 If for any reason UPS delivers them in error, Fulton Armory demands that you
 return all 100 of them back to us. We will credit your credit card
 the moment the receivers are received by us, as well as reimburse you
 for standard ground shipping, handling and insurance. If they are not
 returned, we will call the CADOJ and list them as stolen.

 ATF allows that any licensee may refuse to sell to anyone, for any
 reason. I so now refuse to sell our lowers to you.

 The California DOJ called me today and informed me that even though our
 receivers are technically legal for sale in CA, we __could__ still be
 prosecuted by any of the over 100 DA's in California. An essential
 fact that you withheld from me in our communications. Had I been
 aware of this critical information, and that there was some legal
 dispute, I would have never shipped these receivers to
 California.

 As mentioned earlier today via our phone con, the
 second 100 receivers that you ordered will not be shipped.

 It seems these days, there is legal, and then there's "legal".
 Who knew. Who can know these things?

 A copy of this email will be faxed/mailed to the CADOJ.

 W. Clint McKee
 Owner 
 Fulton Armory

After that happened, a lot of people that thought they were getting the lowers they wanted had to look elsewhere. This was the beginning of the group buys. Because of the DoJ intimidation, these had to be somewhat secretive. The first group buy in my area was started by a user here, but it was soon integrated with a group buy started by artherd and Scatch Maroo. This first buy was set up in secret on a private subforum.

Despite the "two weeks" comment at the gun show, nothing happened. There was no new list. However, there was quite a bit of internal DoJ activity during this time.

Dale Ferranto, the Assistant Director of the firearms division, drafted a provisional list dated 12/20/05. [ 6]

January 2006

January was mostly a series of organized group buys.

The first Northern California group buy that was arranged for in December started in early January. Fulton Armory receivers were sold at first (the same ones that Wes should have received). This was done at an FFL in Milpitas, and it went smoothly. The next three or four group buys also went smoothly; Lauer Custom Weaponry and Ameetec Arms lowers were sold along with others.

Ben did not make any money off of these buys. In fact, he lost money. He provided a source for people to get them from and a brief loan. He ordered the receivers and had them sent to the FFL. The shipping fees were likely extremely high, because the fastest possible shipping had to be used to beat the perceived listing by the DOJ. The receivers also had to go from FFL to FFL before they could be shipped here.

Ben also attempted (unsuccessfuly) to import some Wilson Tactical WT-15 receivers. These are manufactured by the son of the owner of Wilson Combat. Wilson Combat lowers are banned, but Wilson Tactical lowers are manufactured under a separate 07 FFL, and are clearly NOT banned by name. The DoJ mistakingly claimed that they were banned, and they had to be sent out of state to avoid potential prosecution. Since then, some FFLs have managed to legally import and sell Wilson Tactical WT-15s.

The San Jose Gun Exchange took orders during January, and were the first retail store to stock off-list receivers outside of the group buys.

Most early fixed-magazine builds used the 'Sporting Conversions' kit. This kit includes an allen wrench, plastic spacer, and a rounded allen nut that threaded on to the unmodified magazine catch. Calguns user 'SemiAutoSam' later produced a somewhat similar design, which he called the MAG-LOCK. Although it uses the same basic parts, his design uses a modified (shorter) magazine catch and a stainless steel spacer that is machined so that the nut will sit flush with the receiver when threaded on. This reduces the possibility that the nut may be removed without a tool if it becomes loose. Thread locker can also be applied to make any fixed magazine more secure.

It was also during the month of January that Bill wrote his excellent OLL FAQ (I believe the first draft was in December) in order to help those that are new to this to gain an understanding of the legal situation. [ 7]

February 2006

Some time in early February, the DoJ 'audited' the Milpitas FFL. During their audit, all receivers present were seized for 'safekeeping'. Their reason was that the FFL's safe was too small to hold all the receivers he had on the premises.

Soon after this occurred, the FFL purchased a new safe. The DoJ refused to return the receivers, and still does so to this day. They claim that they are 'evidence' in an 'investigation'. Firearms seized that were not part of the organized group buys can be returned if you fill out a LEGR (Law Enforcement Gun Release) form. [ 8]

The DoJ released a memo (which was posted on calguns before it was released) in which they officially stated their intention to add these lowers to the list. This was what they had been saying all along, but the memo also contained some unexpected news. [ 9]

The DoJ claimed that they would create a new category of assault weapons (Category 4), which must be registered but still comply with the 12276.1 'features' restrictions. The first version of this memo contained many technical and clerical errors (such as incorrectly citing Harrott.) After being pointed out, these errors were corrected. They did not provide any criminal charges that one could be charged with for “violating” the new policy, and instead stated that they would invalidate your registration. With your registration invalidated, you could then be charged with possessing and transporting an unregistered assault weapon.

This memo created a lot of controversy and was responded to immediately on calguns. Bwiese posted a detailed rebuttal, and many others also brought up valid points. It was later revealed that the CA NRA's attorneys were working behind the scenes on correcting the DoJ 's possibly illegal (and definitely invalid) memo. A 21 page letter was sent to the DoJ demanding, in addition to other things, that the memo be edited to remove the false 'category IV' section. [ 10a, 10b]

It was also during February that calguns user 'bu-bye' created the SRB (Spring Retaining Bracket) for off-list ARs. The SRB is a simple bracket that holds the selector spring and detent in place and allows the rifle's safety to function without a pistol grip present. This is useful for those that wish to use their rifle with a detachable magazine, no evil features, and no grip. This configuration is often called 'gripless.' Despite the reduced comfort of a gripless rifle, it is still quite controllable and many people feel safe using something that could not possibly be interpreted as being a pistol grip. Hundreds of SRBs have been sold.

March 2006

The 'lower craze' really hit the mainstream during March.

A variety of out of state manufacturers and suppliers were shipping directly to California. Stores such as Cold War Shooters are providing many receivers to the state.

Around this time, things sort of slowed down. A lot of rifles were being built, and AK builds became more common.

The final version of the 'prince50' magazine lock was introduced to calguns in March and sold by user 'hawk1'. This kit proved to be extremely popular, as it used a modified magazine release button. The design uses a combination of a small and large set screw to securely lock the magazine in place. Only by rotating the large screw 3 rotations with an allen key could the magazine be released. The small set screw could be placed over the large one for added security. Many configurations are possible with this kit, and it continues to be sold.

It was still widely believed that the DoJ would eventually have to list, especially when one considered what they said in all the letters and in the February 1st memo. Below are some quotes from various letters sent by the Department of Justice that demonstrate how the language about updating the assault weapon list changed over time.

DSA – ZM4 – 8/4/05 – Alison Merrilees [ 3]

"You should be aware that all DSA
 receivers, including the ZM4, will soon be added to the list of
 weapons that are considered assault weapons under California
 law. After the list is published, owners will have 90 days to
 register their firearms, pursuant to PC 12285."

JP Rifles – CTR-02 - 9/28/05 – Alison Merrilees [ 5]

"You should be aware, however, that
 the JP rifles CTR-02 is virtually identical to rifles that are now
 listed as assault weapons by the Department, and may be considered an
 assault weapon in the near future."

Stag Arms - Stag 15 - Lisa Strange – 12/5/05 [ 11]

"...you should be aware that the
 Stag-15 lower receiver is virtually identical to rifles that are now
 listed as assault weapons by the Department, and is likely to be
 considered an assault weapon in the near future."

Stag Arms - Stag 15 - Alison Merrilees – 12/28/05 [ 12]

"...you should be aware that the
 Stag-15 lower receiver is virtually identical to rifles that are now
 illegal assault weapons. You should also be aware that we intend to
 add it soon to the DOJ Assault Weapons Identification Guide.
 Therefore, the Stag-15 will soon be classified as an assault weapon."

There are many more examples of letters from the DoJ available. [ 4a, 4b]

 When the Department finishes drafting an updated list, they must submit it
 to the Attorney General where he can then have it published in the CCR
 (California Code of Regulations).

 If the list was updated, you would see it announced in the notice register,
 located at http://www.oal.ca.gov/reg_notice.htm.

 This seems like a simple process, and it probably is. However, there are 
 complications that delay the process. One complication is that every time
 they think they have everything on the list, something new pops up. It seems
 that they could just browse ar15.com and look at the list that has just about
 everything out there, but I believe there is a reason why they do not do so.
 The reason is that they have to verify the existence of each receiver that is
 banned, which probably means getting at least one of each for themselves and 
 photographing it.

 In addition to recordkeeping reasons, the lowers are photographed so that they may
 be added to the Assault Weapons Identification Guide, a guide for law
 Enforcement agencies so that they may know what is banned.

 Since this guide has not been updated since 2001, and since the current version
 has many technical problems, it would probably have to be completely
 redone.  

 Another possible reason is that they are stalling, desperate for new legislation
 to support the February 1st memo, or something more sinister. Only time will tell...

...and tell it did.

May 2006

In May, the February 1st memo was removed. Phone conversations with the DoJ revealed that a replacement memo was in the works.

Soon after, the new memo was posted. [ 13]

[Note that the Feb. 1st memo was not actually removed from the DoJ website until November 13, 2006]

This new memo outlined their new strategy: do not update the list, and change the regulations to make legal fixed magazine OLLs illegal (with no provision for registration). The DoJ claims that fixed magazine rifles that require a tool to remove the magazine still have a "capacity to accept a detachable magazine."

This memo was attacked just like the February 1st memo. The fear, uncertainty, and doubt caused by this new memo's claim that fixed magazine rifles are currently illegal caused many to go "gripless" or to use a legal non-pistol grip. A grip that does not meet the definition of a pistol grip as defined in the CCR can be installed on a detachable magazine rifle providing that it has no 'evil features'.

One such grip is the 'MonsterMan' grip, which was introduced in May and later sold through various vendors. A photo of the grip was sent to the DoJ for possible 'approval', but they refused to do so, instead mentioning the '58 District Attorneys.' Because this grip seems to fully comply with the regulation as written, it has become quite popular. An AK version is also available. The MonsterMan grip is at a different angle than a standard pistol grip, and has a 'fin' that prevents the user from using a pistol style grasp. The length of the grip is such that one can not possibly reach the trigger when grasping it from behind with the web of the hand above the top of the exposed portion of the trigger. Of course, it is up to the end user to ensure that their rifle is in a legal configuration. Some rifle stocks could possibly allow for the hand to fit between the stock and grip, so the manufacturer reccomends that the unmodified grip be used with standard stocks only.

Other than shoot our rifles, there was not much to do but wait for the new regulations (if they were indeed forthcoming.)

Calguns user 'xenophobe' created the 'off-list' list, which currently has 114 models that are not found on the list of banned assault weapons.

June 2006

In June, the DoJ moved forward with the new regulation mentioned in the last memo.

They proposed that 978.20(f) be added to the California Code of Regulations: [ 14]

“capacity to accept a detachable magazine” means capable of accommodating a detachable magazine, but shall not be construed to include a firearm that has been permanently altered so that it cannot accommodate a detachable magazine."

This would mean that a fixed magazine rifle would have to have the magazine permanently attached to the receiver. This brought up some technical issues, and the regulation would also effect many other legal firearms (some of which were approved for sale by the DoJ themselves!) One of these 'issues' was the fact that the regulation, as written, would make fixed magazine rifles such as the Norinco SKS illegal (SKS with detachable magazine is banned by name). In addition to this, many SKS-type rifles such as the Zastava M59/66 are legally configured with 'evil features'.

As written, the regulation was horribly vague and could not be applied. Interested parties had until August 16th to reply regarding these changes, and a public hearing was to be held in Sacramento. During this hearing, the DoJ would receive comments in person.

To complement the proposed regulation, the Attorney General sponsored some new legislation. AB2728, previously dealing with firearm dealer audits, went through a process known as 'gut and amend' where the text was replaced with something new. [ 15]

The author(s) of AB2728 wanted to remove the Attorney General's authorization to list new assault weapons and make it so that "the term "assault weapon"...includes the frame or receiver of the weapon." The bill would also add another option for dealing with simple possession of a banned assault weapon in lieu of misdemeanor or felony charges. Assault weapons possessed in violation of AWCA would be destroyed.

The Attorney General wanted to give up his authority to list new assault weapons because there is no way to get them all and because the expectation that he would list is what created the rush to buy receivers and complete rifles in the first place.

August 2006

During August, comments regarding the rulemaking by the DoJ were submitted. The public hearing took place, and the NRA was present. Detailed comments that demonstrated the problems with the proposed regulation were submitted by NRA attorney Chuck Michel. [ 10a, 10b]

AB2728 was further amended during August to remove "the term 'assault weapon'...includes the frame or receiver of the weapon."

AB2728 passed at the end of August.

September 2006

AB2728 is signed in to law. No new assault weapons can be listed by the Attorney General after January 1st, 2007. This amendment to previous laws will also have other unintended effects.

November 2006

On November 1st, the DoJ posted their modified proposed regulation. [ 16]

The new regulation does address some of the problems (such as the SKS issue) and they define several ways that a rifle can be modified so that it is no longer 'capable of accommodating a detachable magazine'. Many of these methods are not permanent.

Despite all of this, there are still many problems with the new regulation and we must continue to fight it.

Comments on the modified regulation must have been received by 5:00 PM on November 17, 2006. Visit this location for more information.

The U15 stock was introduced in November after many months of design and testing. The stock attaches where the grip does in a standard configuration and has a slightly longer length of pull than the A2 stock. This stock allows for a more traditional style grasp, and does not fit the definition of pistol grip. In order to be used, the U15 stock requires the rifle to be equipped with a CAR length receiver extension and buffer (included with the stock). This receiver extension does not come in contact with and is not part of the stock. This is to avoid having the U15 stock classified as a thumbhole stock. The buffer used with the U15 stock is the same one used on many AR pistols. If this buffer was part of a stock, these pistols (legally available in other states) would likely be classified as short barreled rifles under the federal NFA (National Firearms Act).